Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

09 November 2009

Tearing Down Walls and Building New Ones

As anyone who knows me has heard me complain about at length, I despise Apple. It's not that the technology is inherently bad, but that arrogance of "Steve knows best" that comes through the closed architecture, the inability to adapt products easily to one's own needs (e.g., the continued use of Safari as the default browser... when it is expressly incompatible with the major legal, banking, and government documents systems), and the pricing structure. But, that said, some of the products and accessories really are interesting, which leads to the ability to adapt one's iPhone to help your Klingon language proficiency (that sort of acts as a counterexample to my second gripe, but not in a good way!).

Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offence.

In a not-too-startling display of abject ignorance, James Surowiecki blathers at The New Yorker that Wal*Mart's price-cutting on certain books is not predatory pricing because "the company's entire history has been one of perpetual cost-cutting, even after it's become the country's dominant retailer"  incorrectly assuming, as do most commentators, that Wal*Mart represents a single market. If one looks over time at various aspects of Wal*Mart's pricing policies by store segment, one will discover that the entire history has not been one of "perpetual cost-cutting": Compare, for example, relative tire prices in 1986, 1996, and 2006 to its actual competitors, and then ponder the identity of those competitors. One can easily argue that Wal*Mart drove potential "one-stop shopping" competitors out of tires  and, indeed, largely out of automotive  in a predatory manner. The same analysis applies across the rest of the store, although perhaps not so obviously. It's just a different information firewall...

Tearing down walls to the past may not benefit everyone, particularly "new and emerging" music acts. <SARCASM> This assumes, of course, that the "new and emerging" acts deserve to "emerge" in the first place if they can't compete with low-resolution/audio quality pieces from the past. And the putative author of that article sort of makes that point for me with his own musical past. <SARCASM>

Later today, I'll be dealing with the Google Book Search wall, in more than one respect: Both the ineffable arrogance and idiocy of the designated parties and the silliness of the settlement structure they've chosen. (Update: I guess it'll be Friday the Thirteenth  see the item posted later today.) On the other hand, this afternoon the Supreme Court will be trying desperately to determine whether to erect another wall: What qualifies as proper subject matter for a patent? This is a vastly more important question than even the fundamental-definition-of-justice issues concerning juvenile life sentences being argued this morning, for a very simple reason: It requires, at a principled level, answering the question "Is there any kind of thought that is inherently not claimable as intellectual property? And, if so, is there a gate in the wall?"

Bilski and its brethren directly concern the so-called "business method" patent  whether, that is, a business method (in this instance, a procedure for hedging risk against changing commodity prices that purportedly benefits businesses)1 qualifies for patent protection. Ultimately, the problem is this: If the concept in question is indeed "Useful," does it require a grant of "exclusive Rights for limited Times" to motivate those who might personally benefit from the concept to "advance the Useful arts"? Or, more directly: If a "business method" can be practiced for profit, does exclusivity operate to the advantage of "business" as a whole, or only to the "inventors" who can exclude others from practicing that method? Those of us with particularly strange grasps of the concept of "intellectual property" will immediately think of a concept from copyright: The information/expression distinction. To my admittedly strange way of thinking, consistency across the realm of intellectual property counsels rejection of the Bilski patent because it is "mere information," and not a unique, objectively verifiable expression that retains value for the expression per se rather than some summary of it (in the way that Frost's poem linked above retains value beyond the out-of-context quotation of one line that most people know it for). Thus, the Court should reject the Bilski patent, both in particular and on principle; the hard part will be coming up with a coherent rationale for doing so that can withstand both intellectual and economic pressure. And that should sound very much like the Google Book Search problem...

Of course, in a "process" sense this merely represents a patent on Maxwell's Demon... because the whole point of an orderly market in commodities is that it supposedly reaches equilibrium quickly, and hedging  by definition  is an attempt to avoid the consequences of market equilibrium. In short, one can argue that the Bilski patent is an attempt to defeat the laws of nature akin to a perpetual-motion device. Thus, this may turn out to be a less than optimal fact pattern for a sensible decision. There's nothing new in that; so was Brown v. Topeka Board of Education, and so was Gideon v. Wainwright. The Court doesn't operate in a laboratory-clean world of carefully designed experimental results... which is, itself, a rather ironic comment on the Bilski patent.

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

Approximate Views

(page impressions since the last time the server's counters were reset, at present early 2007)